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Can state employees who decline to join a union in their workplace be required to pay fees to support the union’s work? On February 26, the Supreme Court will hear arguments in Janus v. American Federation of State, County, and Municipal Employees, a case pitting the First Amendment claims of dissenting employees against the interests of public-sector unions. Mark Janus, an Illinois state employee who opposes the union, argues that a state law allowing public-sector unions to charge nonmembers fees for collective-bargaining activities violates his First Amendment rights. Were the Court to accept this argument, it would severely undermine such unions, by requiring them to provide services free of charge to any worker who says he objects to the union. Regardless of what you think about unions, such a ruling would turn First Amendment law on its head. 1

The American Civil Liberties Union is second to none in defending the First Amendment rights of free speech, association, and assembly. We protect the right to associate and the right not to be compelled to associate against one’s will. But state laws allowing unions to charge fees for services that they must provide to all workers does not violate anyone’s free-speech rights. Here’s why.2

Over 40 years ago, in a case called Abood v. Detroit Board of Education, the Supreme Court ruled that public employees who choose not to join a union can, nonetheless, be charged an “agency fee” to cover the cost of negotiating and implementing a collective-bargaining agreement. Unions are required by law to provide these services to all employees, regardless of whether the employees are union members or not. Because the agency fees merely cover the cost of services rendered, the Court held, they do not violate the First Amendment so long as they are not expended on the union’s ideological speech. Workers can’t be compelled to join the union, or to support its non-work-related services. But they can be required to pay for the services the union is required to provide them. 3

That compromise, critical to the survival of public-sector unions, promotes three vital interests. It protects the associational interests of public employees who do not join a union by ensuring that they need not subsidize ideological speech with which they disagree. But at the same time, it protects the associational interests of those who do join unions by ensuring that they do not have to subsidize workplace services that benefit nonunion workers. And it protects the state’s important interest in ensuring labor peace by recognizing a single union.4

Related Article

The key to properly resolving this case requires recognition that the government is acting as an employer. The Supreme Court has long held that as an employer, the government has greater leeway to regulate the speech of its employees than it has to regulate the speech of ordinary citizens. This makes eminent sense. Workers can often be required to say certain things, and refrain from saying other things, as a function of their job. And this is true of government workplaces as well. The courts have not allowed workers to use the First Amendment as a wrench to throw into the government’s ability to function as an employer.5

Just as the government as employer has leeway to regulate the speech of its employees, so it should have leeway to decide that in its workplaces a single union serves the interests of efficiency and labor peace, and that all who benefit from the union’s services should pay for those services. It is not a violation of the First Amendment to disallow free riders who would have others pick up their costs. The First Amendment protects the right to speech, but not the right to get something for nothing.6

David ColeTwitterDavid Cole, national legal director of the ACLU, is legal affairs correspondent for The Nation and a professor at Georgetown University Law Center. He is the author, most recently, of Engines of Liberty: How Citizen Movements Succeed (April 2016).

Amanda ShanorAmanda Shanor is a staff attorney at the American Civil Liberties Union, which filed an amicus brief in Janus v. AFSCME in support of AFSCME.

The ACLU (in this article) interprets things wrong in at least three regards:
1. Free Rider - "Unions are required by law to provide these services to all employees, regardless of whether the employees are union members or not." First, this so-called "exclusive representation" statute is only extant in some (but not all) states. And such statutes were instituted at the behest of the unions. It would be like GM insisting on a law that required them to sell everyone a car. Of course, they would be upset if a court allowed some to avoid paying. But the issue is requiring the purchase from GM in the first place !

2. Association - "But at the same time, it protects the associational interests of those who do join unions by ensuring that they do not have to subsidize workplace services that benefit nonunion workers." Our right to association comes from the 1st amendment "right to assemble". The ACLU should know that the 1st amendment (as part of the bill of rights) has repeatedly been held to be an individual right. The quoted sentence indicates their belief that the "associational interests of those who do join unions" have some bearing on those who do not. But this is false. Imagine if a majority of workers at a company chose to make Protestant the company's religion ... and conditioned work on believing in their God. It sounds far-fetched - but that's exactly the argument that the ACLU is making.

3. Employer - "The key to properly resolving this case requires recognition that the government is acting as an employer. " Yes, it's true that the government for public employees is an employer. And yes, an employer can restrict your speech to some degree. (e.g. A public teacher can't tell her students not to take a test that the board has directed.) But the ACLU is confusing the issue. The speech that Janus chooses to abstain from supporting is not that of the employer (government) but rather that of the union attempting to make changes in the government. While the government is the employer, the union is NOT. Rather, they are a service provider - much like a health insurance provider. You can choose to engage that provider or not ... but it's your choice and your association or consumption cannot be compelled by the choice of others.

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Carl Schwartzsays:

February 23, 2018 at 12:04 pm

These right-wing "public interest" law 501(c)(3) organizations are actual barratry organizations, funding an betting on lawsuits to restrict the promise of our Constitutional democracy. Expose the for what they are.
Putin, I'm sure, loves them and probably secretly funds them in his efforts to destabilize the West and pick up the pieces.